55 Ind. App. 100 | Ind. Ct. App. | 1913
This is an action begun by appellants Wait M. Heaton and his wife, Viola A. Heaton, against the appellee Grant Lodge, to quiet appellant’s title to a lot or tract of real estate in the town of Mt. Vernon (now Red-key), Jay County, Indiana, to wit: “A part of lots 7 and 8, in block 1, in the town of Mt. Vernon (now Redkey) bounded as follows: Beginning at the southwest corner of said lot 7, and running thence east 23 feet; thence north 95 feet; thence west 23 feet; thence south 95 feet to the place of beginning.” The issues of facts were tendered by a complaint in one paragraph and a general denial. Before trial, Viola A. Heaton died and her children Robert S. and Alice C. Heaton were substituted as plaintiffs. There was a trial by the court and a general finding and judgment for appellee. Appellant Wait M. Heaton filed a separate motion for new trial which was overruled. Appellants Robert S. and Alice C. Heaton filed a motion to modify the judgment and also their separate and several motions for new trial. These motions were each overruled. Exceptions were properly saved to the several rulings, and they are each separately assigned as errors by the respective parties against whom they were made, and are, by them respectively, relied on for reversal.
We next consider the question presented by the motion for new trial made by appellant Wait M. ITeaton. It is insisted by the appellant that the decision of the trial court against him is not sustained by sufficient evidence. There is little or no dispute in the evidence. The facts disclosed by it are substantially as follows: on February 15, 1894, Martha F. Paxon, widow of Pierce I. Paxon, deceased, who was then the owner of said real estate above described and other real estate adjacent thereto, by her warranty deed conveyed to Charles E. Walker and his wife Isabelle Walker, said lot above described and on the same day conveyed to appellee Grant Lodge a lot of the same dimensions immedi
“The party of the first part (Walker and Walker) covenants and agrees to put in good, suitable and substantial foundation and complete a good and substantial brick building on his said ground to be twenty-three feet (23) wide and not less than seventy-five (75) feet long to be built as high as and constituting the first story including good and suitable joists on the top thereof. The walls of said story to be of suitable material and thickness to properly support another story on the top thereof: Provided, however, that the partition wall hereinbefore mentioned shall be thirteen inches thick with a proper and suitable foundation thereunder, which wall and foundation shall be constructed by both of said parties each bearing one-half of the expense thereof. And the party of the second part covenants and agrees to construct a like building and of like dimensions on their said ground and to assist in constructing said partition wall and its foundation bearing one-half the expense thereof and that they will construct and complete a second story on said building serving as a second story for both the portion built by first and second parties. Second party to properly and substantially roof said building and to put a good and proper front in said second story suitable for such building and bear all the expense of said second story. The fronts of the two lower stories alike. In consideration whereof said first party has leased and rented and does hereby lease and rent unto said trustees and their successors for the use of said lodge and their grantees and assigns the second story so to be constructed over the portion of said building to be built by said first party as aforesaid for and during the term and period of ninety-nine years from and after the date hereof, renew*105 able at the option of second party their grantees and assigns forever on their compliance with the terms and conditions on their part to be done and performed herein stipulated. ’ ’
This agreement was recorded February 16, 1894. On March 22, 1894, Walker and Walker and said Grant Lodge executed a mortgage on said Walker and .Walker lot above described to “No. Two Indiana Mutual Building and Loan Association” of Indianapolis, to secure a note of date March 1, 1894, for $1,000 signed by same parties. On October 20, 1894, a mortgage in the same form by same parties and to same association was executed to secure a second note given by same parties for $300. On February 18, 1897, there was filed in the Jay Circuit Court by said building and loan association a suit to foreclose said mortgages. Said lodge was made a defendant to said foreclosure proceeding and by and through its trustees was summoned to appear thereto, and was defaulted. On April 1, 1897, a judgment and decree of foreclosure was entered by said court in said action. On March 11, 1897, Walker and Walker, by warranty deed conveyed said real estate to Wait M. Heaton and John M. Sims which deed contained the following provision :
“Also the grantors convey to the grantees all the shelving, gas fixtures, except regulator and other fixtures belong to said property, this conveyance is made subject to a mortgage held by the Indiana Mutual Building and Loan Association of Indianapolis, Indiana, also the street assessments against said lots for street improvements which grantee agrees to assume.”
On September 17, 1899, Wait M. Heaton and John M. Sims obtained in the Jay Circuit Court a judgment quieting title in them to the lot here involved as against any and all claims of Charles E. and Isabelle Walker, said judgment being obtained on a cross-complaint filed in an action brought by Charles E. Walker et al. On November 13, 1899, the sheriff of Jay County conveyed by deed said real estate to
We find no reversible error in the record, and the judgment below is therefore affirmed.
Note.—Reported in 103 N. E. 488. As to amendment of judgment, see 12 Am. Dec. 351; 62 Am. St. 233. As to right of subrogation, see 99 Am. St. 474. See, also, under (1) 23 Cyc. 876; (2) 23 Cyc. 868; (3) 32 Cyc. 1369; (4) 27 Cyc. 1794; (5, 7) 24 Cyc. 958; (6) 27 Cyc. 1040; (8) 27 Cyc. 1344; (9) 27 Cyc. 1435; (10) 16 Cyc. 715.